If Roe Falls, Is Same-Sex Marriage Next?

“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”

Justice Alito surveyed the precedents cited by Roe and Casey to justify their protection of abortion. They included ones on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of one’s children and the right not to be sterilized without consent.

He also cited two “post-Casey decisions,” Obergefell and Lawrence v. Texas in 2003, which struck down a Texas law that made gay sex a crime.

Justice Alito, a careful draftsman, then seemed to distinguish between the two sets of decisions.

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

Tellingly, perhaps, that passage in the draft opinion was silent on whether its conclusion undermined the two post-Casey decisions on gay rights.

In general, Justice Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”

“None of these rights has any claim to being deeply rooted in history,” he added, a point that could be made about same-sex marriage, too.